The Brennan Center for Justice wrote the New York State Board of Elections to underscore that the Fourth Circuit upheld the constitutionality of a definition of express advocacy under consideration for new state independent expenditure regulations.

We write to follow up on our letter of April 9, 2012, regarding Draft Regulation § 6200.10 on the disclosure of independent expenditures. In that letter, we urged the Board to adopt a regulation including a broader definition of “express advocacy” than was originally proposed. In particular, we urged adoption of a regulation recognizing that express advocacy encompasses more than the so-called “magic words,” and including a provision consistent with sub-part (b) of the federal regulation defining “express advocacy,” 11 C.F.R. § 100.22.

Earlier this week, the U.S. Court of Appeals for the Fourth Circuit upheld the constitutionality of sub-part (b), becoming the most recent federal court to uphold the federal “express advocacy” definition. The Fourth Circuit recognized, as we explained in our prior letter, that the federal definition followed U.S. Supreme Court precedent and was neither vague nor overbroad. We have attached a copy of the Fourth Circuit’s decision in Real Truth About Abortion, Inc. v. FEC, No. 11-1760, 2012 WL 2108217 (4th Cir. June 12, 2012), for your convenience.

In light of this decision affirming the constitutionality of sub-part (b) — and recognizing that the definition can be constitutionally applied to capture speech that does not contain the “magic words” but is nonetheless express advocacy (and not issue advocacy) — we reiterate our suggestion that the Board add a provision to Draft Regulation § 6200.10 modeled on the language in sub-part (b) of the federal express advocacy definition, 11 C.F.R. § 100.22.

Board Co-Chair Douglas Kellner proposed such a definition at the Board’s June 12th meeting, and we would urge the Board to adopt his proposed revisions to the current draft rules.

Thank you for your consideration. If there is any way we can be of assistance, please do not hesitate to contact us.